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August 14, 2008

The Morality of Abortion, Part I: Women Want It Both Ways on Choice

This is a repost of something I wrote a long time ago over at No Government Cheese. It is one of my favorite posts. I am reposting it here as Part One of a two part response to Linda Hirschman's piece, provocatively titled "Reclaiming the Morality of Abortion" I will address her essay specifically in Part Two.

Grim makes a good point on the Alito nomination:

The nomination of Alito has been a good thing for the country, if only so we could have this debate. The question is, "We've come to something of a settlement on a woman's rights. Now, what rights does a father deserve, and how do we balance the two?" The de facto answer is that we don't: the father's sole reproductive right is to keep his pants on. After that, the woman alone has the choices.

Silly man. Abortion is a women's issue - did anyone ask him for his opinion?

The casting of abortion, or stare decisis as it is euphemistically referred to on Capitol Hill, as "pro-choice" could not be more misleading, for in this debate only one of the three parties concerned (man, woman, and child) has the slightest semblance of a choice. Only slightly more honest is the strident call of abortion advocates who swear to defend a woman's right to choose to the death. Pro-choice lobbyists strain our credulity by beating beleaguered district attorneys over the head with the phrase when they go after sexual predators who prey on ten and eleven year-old girls.

No "woman" chose to have sex with those monsters, or to end the tragic new life that began and ended shortly thereafter as a result of that crime; but so jealous are these activists of their "privacy rights" that they'd rather see criminals go free than allow the courts access to records of abortion clinics that practice illegal late-term abortions. After all, we're talking about the woman's right to choose here. It's in the Constitution.

As we are constantly reminded, the abortion debate is all about something called reproductive choice. Of what does this reproductive choice consist? If a man and a woman, married or unmarried, conceive a child together, both are on the hook financially to support that child until he or she is grown. But there are rules. If the woman decides to rid herself of a fetus that she does not want (but the man does) she may kill it and this is perfectly legal. If the man decides to rid herself of a fetus that he does not want (but the woman does) - perhaps by slipping her an abortifact that does not otherwise harm her - this is murder, and he will go to jail.

Thus, two utterly contradictory things occur at the moment of conception:

Legally, from the point of view of a woman: the fetus is a lump of tissue which may be excised at will if she subsequently regrets having conceived a child. It imposes no obligation or legal duty unless she chooses to accept it.

Legally, from the point of view of the man: the fetus is a human being which must be allowed to live, even if he subsequently regrets having conceived a child. It imposes an absolute and irrevocable legal duty, regardless of his wishes in the matter.

In other words, if you have a y chromosome you have no reproductive choice. Except, of course, to pay at least a half-share of whatever "choices" your sexual partner may make, whether you are married or single - it makes no difference. When one considers that women can have multiple orgasms (and that ours generally last longer), something tells me men are getting the short end of the stick.

The following story makes that crystal clear:

...a lesbian couple wished to have children. An understanding and liberal-minded male friend agreed to donate his sperm, and three children were born to one of the two women between 1992 and 1996. But then relations between the two women deteriorated, and they split up.

The mother of the children found herself alone and in difficult straits. Who would support her, in her—and her children’s—time of need? Her former lover was unwilling, because—after all—she was no relation of the children. The sperm donor had made it clear from the first that he had no wish to be a father in any but the most literal biological sense; he thought he was merely doing the couple a favor. He therefore felt no moral obligation to support the children, and his conscience was clear.


You can probably guess where this is going:

Nevertheless, the government’s department of social security—the potential surrogate parent of every child—sued to force the sperm donor to pay. After a case lasting four years, he found himself obliged henceforth to support the mother and children financially.

The president of the Swedish Federation for Sexual Equality declared the legal decision an outrage. “It is scandalous,” he said. “The man has been condemned to be a father even though he did not take the decision to have the children. Above all, one of the women who took part in that decision has been absolved of all responsibility. If one desires equality of rights for lesbians, it is anomalous that it should not be she who was obliged to support the children financially.”


This is an interesting case for many reasons. The knee-jerk reaction is to say, "Well of course: the poor man did nothing but deposit his sperm into a cup. Why should he pay?"

In truth, several social institutions are shown to be foundering here. Marriage itself, so fervently desired by the lesbian community, as well as child-rearing, does not come off well. Four years? Hardly a serious commitment to making a relationship work. My sons both dated their girlfriends longer than that - they have shown more maturity in their teens and early twenties than either of these women. Not that the heterosexual world is doing a bang-up job at marriage either (mind you) these days. But two people stood up, presumably, and promised to love and honor each other "'til death do us part"... or until they tired of it, whichever came first.

The concept of family as an unseverable bond is another. Divorce happens, but children are forever. Only one half of this "couple" walked away from that. When she took wedding vows and decided to take on the responsibility of having three children in four years, that responsibility did not end when she tired of the relationship.

But what is in danger of getting lost here is the role of the sperm donor. On the one hand, I completely agree that his responsibility should be by far the least of any party involved in this. But there is still something unseemly in the Swedish President's use of "condemned to support the children", for without his intentional act those children would never have come to be. Did he never give a thought, when he deposited his sperm in that cup, that living, breathing human beings would one day walk the earth?

That they might, one day, wonder who their father was? That they might need him? Theodore Dalrymple comments:

If women have a “right” to children, in the sense that not having them if they want them is an infringement of their rights, then of course lesbian women can no longer accept childlessness as the natural consequence of their condition. Let it not be said that new medical technology is responsible for this change in attitude, incidentally: the kind of artificial insemination offered in a domestic setting by the sperm donor has been possible for a very long time. No, the culprit here is the idea that the fulfillment of our desires, no matter what our condition, is a right. As for the well-being of the children in this case—beyond the provision of sufficient financial support for them—that seems to have entered into no one’s thinking.

And that is the whole problem with the abortion debate: everything is cast in terms of the woman's rights.

Has a man no reproductive rights? Why don't we ever ask that question?

Yes, gestation takes place solely within the woman's body, but it could never take place without the man's unique and special contribution, and while not all men care about their progeny, some men do want, and love, and very much desire to protect and nurture, the children they conceive. In a rather caustically-worded excerpt at Protein Wisdom, Jill from Feministe said:

Alito distanced himself from previous Supreme Court views on undue burden, writing that “an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown.” So if a particular requirement which infringes on the right to privacy — husband notification for abortion, for example — only has a detrimental effect on some women, that isn’t a good enough reason to disallow it.

Hmmm... since she disagrees with Judge Alito's dissent, if abortion without the consent of a woman's partner only has a detrimental effect on some men, isn't that a good enough reason to disallow it?

Grim comments:

...feminists insist that abortion be seen as a medical procedure that is the woman's business and no one else's. The child has no rights that ought to bind her, because the advocates for the woman's position in our law insist on that point. The masculine understanding, however, holds that the man's rights are overwhelmed by his responsibility for the child. The men who have ruled the discussion, men like me, feel that fathering a child is an awesome duty and one that ought to bind you. The compromise position gives both sides what they want: the leading thinkers of the women's position have demanded freedom for women; the leading thinkers among men have demanded responsibility for men.

The feminist position on "reproductive choice" closely resembles the Rad-feminista position on many other issues of the day: so-called "equal pay for equal work", Mommy-friendly workplaces, flex-time, and cries of gender discrimination in math and the sciences: they want freedom without tiresome responsibility. It is a childish and petulant stance, unbecoming to 'liberated' women. There is enough genuine discrimination in the working world to combat without tilting at straw men.

If we ever hope to be equal with men then we must, with our "equal rights", accept equal responsibilities. It is, truly, that simple. And if women ever, by and large, come to do so and quit the silly whining that occupies so much of the airwaves, they will very likely find that a great deal, though by no means all, of the 'discrimination' they experience will vanish into the ether like a bad dream. Life is never going to be a level playing field for women, but then it's not a level playing field for anyone. We all bring different talents, different strengths, and if we are honest, different aspirations to the table. The one inescapable fact of life however, is that there are always trade offs.

The sad thing about the abortion debate is that by simply exercising a tiny amount of responsibility before conception, grown women could easily avoid a situation where they inflict the results of their own negligence on their partners, while depriving them of the "reproductive choice" they so ardently defend for themselves.

Posted by Cassandra at August 14, 2008 08:21 AM

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Comments

I personally believe abortion to be wrong and a sin. I would never consider it personally (well... for my wife) as an option.

My problem is I have a fundamental issue with the federal government taking a hand in this at all. The original Roe v Wade missed a VERY important element to the constitution when they ruled on the 'Penumbra' Right to Privacy. And that is the Ninth and Tenth Amendments.

IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This says flat out, that just because a right isn't specified in the Constitution, it's not one the people don't have. This makes it look good for the 'Penumbra', but wait...

X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

In other words, since the Constitution is silent on the Federal Government's role in abortion, and there is no prohibition explicited stated against it in the Constitution, then it SHALL be up to the states (or the people) to determine how to handle the issue.

So the SCOTUS decision on Roe v Wade exceeded the judicial fiat and powers of the Supreme Court. Creating a new right from thin air is actually supported by the Ninth Amendment. But the Tenth EXPLICITLY states that doing so is the role of the States and the people.

Roe v Wade represents bad case law, precisely because it removed a hotly debated issue from public debate. The Left considers it a 'settled' issue. But that's exactly the problem, it ISN'T because no legislature can properly debate it because of the SCOTUS decision.

Posted by: MikeD at August 14, 2008 01:11 PM

MikeD-
I'd take the angle that the 5th makes abortion illegal:
No person shall be... deprived of life, liberty, or property, without due process of law.

Making an entire group of humans not persons due to their location is pretty stupid.

Posted by: Foxfier at August 14, 2008 01:29 PM

I don't disagree with that premise either. But the fact remains that this is an issue that should have been left to the states to decide. Anything decided on the local level will be more equitable than that which is decided at the national level.

Posted by: MikeD at August 14, 2008 01:57 PM

I'll look forward to your addressing Linda Hirschman's piece directly - surely she has made one of the stupidest arguments for abortion I've ever read. In fact, it's almost unsporting of you to go after her.

The aspect of her argument that makes most drives me crazy is her blithe disregard of the possibility of a mother (or parents) giving up an unwanted child. And it's not just her - I've heard this type of reasoning many times. I simply do not understand the mindset that says, "I can't afford this child, don't want this child, can't cope with a child with disabilities and it would break my heart to give a child up so I'll have an abortion."

As for men's rights and responsibilities, I've long believed that men should have no rights to and no responsibilities for children born out of wedlock. If a man risks fathering a child out of wedlock, he should know up front he has no claim to it. If a woman risks bearing a child out of wedlock, she should know up front that she's on her own. If chooses to have an abortion, give the child up for adoption, or bear and raise that child, that's totally her decision. The mother and father can, of course, work out other legal arrangements via contract if they so choose.

If a couple is married then I believe both mother and father have rights and responsibilities. The problem, of course, is that if a pregnancy occurs and the mother wants an abortion and the father does not, the father's rights are unenforceable. A woman can obtain an abortion and there is no mechanism to insure the father is consulted. So, yes, a married father has financial responsibility for children with no ability to prevent his wife from having an abortion. I think that's just a matter of biology unless we're willing to set up an elaborate system of identity checking for every woman who seeks an abortion.

As for the Swedish lesbian sperm donor example, there are steps that can be taken legally. If Sweden wants to allow families headed by lesbians, there should be a mechanism in place to insure both of them are responsible for any children born during the marriage. If no such mechanism exists, then the woman who bore the children knew she was on her own. I also believe the sperm donor should not have responsibility for the children.

On the non-legal side, I do not know what can be done in the Swedish case or in any case. Some parents will never think of what children themselves may need, of what would be best for them but will always think of children only in relation to what the parents want. The Swedish sperm donor may well have thought of the children only as a favor he did for a friend - akin to, say, baking her a birthday cake - and never grasped the reality of producing little human beings. The Swedish lesbian who left her “spouse” and abandoned “their” children clearly had no concern for the children themselves. More traditional mothers and fathers can view children this way, also, wanting to have children without grasping that they will be producing actual separate people. This attitude it seems to me is the same as the attitude I cited earlier. The idea of “this child doesn’t fit into what I want so I’ll have an abortion rather than give the child up so I won’t suffer over being separated from my child” is not that different from viewing having a child as akin to buying a new handbag or tie. In both cases, there is no understanding of a child as an entity separate from the parents with needs of his or her own.

Just for the record, I support abortion rights with a good number of limits and conditions. (For example, I’m still waiting for someone to explain to me a situation in which a third-trimester abortion is necessary.)

Incidentally, the link to the Protein Wisdom post in Grim's post is defunct. I'm pretty sure this is the one he was referencing:

http://proteinwisdom.com/?p=5410

Posted by: Elise at August 14, 2008 02:12 PM

Elise:

I think it was actually this one:

http://proteinwisdom.com/?p=5433

Thanks for noting the dead link. I'll try to fix it in the original.

Posted by: Grim at August 14, 2008 02:18 PM

This was a wonderful debate, except I think it's one of those occasions when we ended up talking about two entirely different points. Yours (which was good) was that women want all the rights and none of the responsibilities, while giving men all responsibility and none of the rights.

Mine, really, was about why this compromise had been acceptable to American society, and why I thought it was breaking down. Essentially, men have been willing to accept the idea that men who father children should be responsible for them, period. Yet that focus on duty, which underlay why American men didn't protest the development of this setup, is also directly opposed to the use of the judiciary to rewrite the law further.

Now a few years on, I think that compromise has been reinforced. The Alito/Roberts court has done a great deal to shore up the wall that was collapsing: the judiciary has been pulled back towards its duty by the new SCOTUS. I'm not sure the issue is as pressing or disruptive as it was in 2005.

Posted by: Grim at August 14, 2008 02:31 PM

MikeD,
I do agree that the 9A and the 10A do work together, but that the 9A does explicitly state that there are rights beyond what is enumerated in the Constitution does not imply that the Constitution has "penumbras".

Remember your history. The 9A was included because the anti-federalists opposed the inclusion of the Bill of Rights at all. Their thinking was that the gov't couldn't pass laws against free speach, establishing religion, prohibiting free excersize of same, prohibiting petitions of redress, banning firearms, quartering soldiers in homes, etc because the gov't was never given the power to do those things anyway. They feared that enumerating certain rights would imply the list were exhaustive. The 9A was included as a reminder that it wasn't.

Thus you don't need to go searching through the enumerated rights to find "implied" (penumbral) rights. Rights of the people should be assumed to exist unless it can be shown explicitly where the gov't was given the power to prohibit it.

The Bill of Rights are there so that if ever one does make the case that the Constitution does give the gov't power to regulate political speach, prohibit religion, quarter soldiers in homes, etc., the gov't still can't do it.

Posted by: Yu-Ain Gonnano at August 14, 2008 03:38 PM

Sorry, I was unclear. You're absolutely correct that there is no need for 'penumbras' because we (the People) have all Rights by default. But you know as well as I that the 10th Amendment (which really should have been the end of the discussion for the SCOTUS in Roe v Wade) is really all that matters. But sadly, the 10th hasn't been given even a smidge of recognition or respect from the Federal government (who found it inconvenient) since FDR. Congress doesn't like it because it limits their powers to make laws, the Executive doesn't like it because it can't veto laws that the States pass, and the Judiciary doesn't like it, because they can hardly pass their personal preferences into case law if they have no Constitutional jurisdiction.

Posted by: MikeD at August 14, 2008 03:54 PM

Well, still I would disagree. It is the 9A that isn't being enforced because it is inconvenient.

The 10A is actually an "out" that says that just because we didn't give the feds the power to restrict those unenumberated rights, doesn't mean we won't let the states squash them if they want.

For example, it was never given to congress to define and codify marriage. Thus, by the 9A, gays do have a right to marriage. However, since the power to define marriage was not given to the feds, nor prohibited to the states, it is up to the states to decide if gays have the right to marry or not. (Which further supports your contention that abortion is not a federal issue).

Of course, (I believe) the 14A's "incorporation doctrine" trumps this if it involves enumerated rights (Reference my comment that "even if the fed does have the power they still can't do it" earlier).

Posted by: Yu-Ain Gonnano at August 14, 2008 04:14 PM

If the 14th extended the 9th across the States, then technically no laws could be passed whatsoever that were not covered in the US Constitution. No health departments (local or otherwise), no laws against theft, no laws against fraud, etc. Anything the States passed would be in violation of an unwritten Right (the Right to Someone Else's Property, the Right to Abuse Animals, the Right to Your Neighbor's Mail)

Posted by: MikeD at August 14, 2008 04:27 PM

However, since the power to define marriage was not given to the feds, nor prohibited to the states, it is up to the states to decide if gays have the right to marry or not.

That's not quite what the 10th says.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Thus, it's not simply a case that powers not delegated to the Federal government, nor prohibited to the states, belong to the states. They may belong to the people.

I would argue that defining marriage is such a power. The states were given the right to regulate an existing institution (and, in turn, required to accept the regulations of all other states -- full faith and credit). No one was ever delegated the right to completely alter the nature of that institution.

If you want to change the institution of marriage from "a union of man and woman" to "a union of any two people," you're exerting a power that was never delegated to any government. If you want to do that, you need to go back to the people for new authorization -- which is properly done through the amendment process, not the regular legislative process.

This needs to be a Federal amendment, b/c the full faith and credit clause already mentioned will make any state's rules binding on everyone.

Thus, my reading of the 10th is that the power to fundamentally alter the institution of marriage is a power reserved to the people; and if the government wishes to do it, it needs to go back and ask for a new delegation of authority.

Posted by: Grim at August 14, 2008 04:28 PM

Elise:

I've been dying to address this (and another almost mind-blitheringly dishonest post on the subject) for two days now. Like you, I support limited availability of abortion. Don't like it, support it anyway.

But there are logical arguments to be made for this position. These people aren't making them.

Posted by: Cass at August 14, 2008 04:39 PM

MikeD, I don't think that would be a problem. Incorporating the 9A would mean that there are rights in the state constitutions that are unenumerated and that the default would be that the people retain them. That is still I think a pretty good position.

Incorporating the 10th could be problematic if you took that to mean that the states only had the powers given to the feds by the U.S. Constitution. If it were interpreted to mean that the states only had the powers that that state's constitution gave them and others were retained by the people, then as long as the state constitutions gave the state gov't the ability to make laws against theft, murder, etc. you would be OK. If they didn't I think it would be pretty easy to ratify a state constitutional amendment to that effect.

Posted by: Earth at August 14, 2008 05:27 PM

Personally, I have a strict policy against speaking directly to astronomical bodies (unless they're of the female persuasion)*, so I am afraid I cannot reply to you at this time. Especially when you consider your drinking problem.


* If I said you had an astronomical body, would you enter into my orbit?

Posted by: MikeD at August 14, 2008 05:32 PM

Whoops, forgot to change my name back.

Grim,

Yes, the power could be retained by the people.
Though I don't see the connection that because the power is retained by the people that it precluded the people's use of the legislative process to excersize said power.

Posted by: Yu-Ain Gonnano at August 14, 2008 05:34 PM

I thought this was interesting..."men should have no rights to and no responsibilities for children born out of wedlock...If a woman risks bearing a child out of wedlock, she should know up front that she's on her own."



...but in reality, that's basically how it is now, single moms are just stuck on their own, often poor, and that's not good for them, the kids, or society in general. That's how it's been for ages, a woman gets pregnant and it's all on her and the man can just run away.



So I still think that the fact that babies grow in the woman's body gives her the right to choose whether to let it grow or not. The man's rights begin with his decision to let loose the sperm, stop when the the sperm enter the woman, and begin again if a baby is born. If men could carry babies or if babies wanted by the father and not by the mother could be transferred to some artificial womb, then it would be different.



I also think that all women who do not want a baby should not have sex, period, only because I'd like to see the reaction of billions of men who realize they are no longer going to get laid until women go through menopause.

Posted by: A female Marine at August 14, 2008 05:39 PM

Now that we have identities cleared up...

MikeD, I don't think that would be a problem. Incorporating the 9A would mean that there are rights in the state constitutions that are unenumerated and that the default would be that the people retain them. That is still I think a pretty good position.

Technically, the 9th cannot be applied to the States (nor can the 10th) else they make no sense. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That's pretty clear. It refers to the US Constitution directly, and leaves those unenumerated rights in the hands of the people. Technically, the State governments are directly answerable to the people in a way the Federal Government was not... but then again, the 9th and 10th were written by men who never considered the 14th.

As for the 10th, simply saying the States have to abide by it does not make it reflexive (i.e. that any powers not expressly given to the States, nor denied to the Feds are the sole purview of the Feds and the People). At worst you could say that it would force the States to demand the Federal government NOT pass laws that were the purview of the States. But that's not likely to happen.

Though it would be interesting to sue the State of Georgia (for example) for failing to abide by the 10th Amendment and force them to sue the Feds for violating it. But that's a wee bit silly.

Posted by: MikeD at August 14, 2008 05:44 PM

So I still think that the fact that babies grow in the woman's body gives her the right to choose whether to let it grow or not. The man's rights begin with his decision to let loose the sperm, stop when the the sperm enter the woman, and begin again if a baby is born. If men could carry babies or if babies wanted by the father and not by the mother could be transferred to some artificial womb, then it would be different.

And here's my issue with this... I've been married 12 years. I'm NOT going to fool around on my wife. If she got pregnant and told me that the decision to have the baby or not was out of my hands, I personally feel that would be a fundamental breach of our marital vows. As in a damned serious one. The fact that biology has her gestate the child does not strip my parental rights from me. Otherwise, you're accepting the premise that women are the only ones with reproductive rights.

Now, if you want to be 100% behind that notion that men have no rights, then I don't see any recourse by men but to have no responsibilities either. If the father has no rights, then it is only fair that he have no responsibility (beyond that which he chooses). And I know you said "that's how it is now," but I'm sad to say that's not so. A friend of mine thought he got his girlfriend pregnant when he was 16 (she was 18). So much so, that he signed the birth certificate. Problem is, it turns out the child is NOT his (a real winner this 'lady'), but the State of Georgia, in its infinite wisdom, has determined that it would be unfair to leave the child without a father, so he must continue to pay child support until the child turns 18. Even though it's not his. Nice huh?

Posted by: MikeD at August 14, 2008 05:52 PM

The thing is, women can prevent pregnancy. They absolutely can.

Ergo, pregnancy is a "choice" they make when they fail to prevent it, just as a man "chooses" to allow a life to begin if he fails to use redundant methods of contraception (or better yet, just not go there if he doesn't want kids). And, as Mike pointed out, he can have a verbal bargain with a woman, yet if she "chooses" to breach it, a court of law will make damned sure he pays for life.

I agree with Mike - with the responsibility go the rights. You don't get to have your cake and eat it too.

All this talk of "Oh, but she will have to face the consequences of her actions!!!"

Yep. That is what adults do. Just as he will. It's called equality, baybee. Sucks to actually be treated equally sometimes, don't it? :p

Posted by: Cassandra at August 14, 2008 05:58 PM

Y-a-G:

Though I don't see the connection that because the power is retained by the people that it precluded the people's use of the legislative process to excersize said power.

Precluding "the people's use of the legislative process" is just what the 10th is for.

For example, the 10th is explictly forbidding the Federal government to do certain things, because they are powers retained by "the states" or "the people." Therefore, "the people" can't use the legislative processes of the Federal government to exercise that power. Such exercise is just what the amendment prohibits.

Other things are forbidden to the states, and therefore the people may not use that legislative process to exercise those powers.

What's going on here is that you're breaking out powers into three categories: Federal powers, state powers, and powers that are not delegated to the government at all. In order to delegate those powers to the government, you'd have to go back to the people for new authority.

All the powers, before the Constitution, belonged to "the people." All that the Constitution is for is delegating some of those powers (and not others) to specific branches of the Federal government, and others to the states; and clarifying that certain others are not delegated. It is that last category which are 'powers retained by the people.'

The power to establish a state religion, for example, is simply not delegated by the people to either the state or Federal government. The people may in fact establish one, simply by all choosing to go to the same church. We could choose, as a populace, to become a Catholic nation. We just can't use the government as the mechanism for it, unless we go back to the people for new authority, and amend the Constitution to provide it.

Posted by: Grim at August 14, 2008 06:13 PM

As for the 10th, simply saying the States have to abide by it does not make it reflexive

I don't believe I made the argument that incorporating the 10A would be reflexive. I did not put forward "Not Fed, then State" --14A--> "Not State, then Fed".
I made the argument that "Not Fed, then State/People" --14A--> "Not State, then People".

Posted by: Yu-Ain Gonnano at August 14, 2008 06:18 PM

Grim, I think I see what you are saying. However, many of the Founding Fathers went back to their states and established State Religions. I have a hard time reconciling your statement that "The power to establish a state religion, for example, is simply not delegated by the people to either the state or Federal government" with that fact. It certainly appears that only the Federal gov't was not delegated the power to create state religions and that the state did, in fact, retain that power (that is until the 14A).

So with that, the 10A lays down and either/or scenario, but does not clarify which powers are delegated to the state and which ones are not delegated at all. I haven't seen anything that forbids the power to define marriage to the state. The 10A would forbid it to the Federal gov't but unless the 10A is incorporated against the states (and thus states only have the powers specifically delegated in their own constitutions).

Getting off the Conlaw track, it seems to me marriage is a legal recognition of a social norm. As such it would seem the legislature (being the representatives of the people) would be the place to hash out those definitions.

Getting back on the Conlaw track, it appears that the "Full Faith and Credit" does not apply to all licenses (else we would have national CCW already) so I see no reason why a marriage license couldn't be treated this way as well.

Posted by: Yu-Ain Gonnano at August 14, 2008 06:37 PM

I thought this was interesting..."men should have no rights to and no responsibilities for children born out of wedlock...If a woman risks bearing a child out of wedlock, she should know up front that she's on her own."

...but in reality, that's basically how it is now, single moms are just stuck on their own, often poor, and that's not good for them, the kids, or society in general. That's how it's been for ages, a woman gets pregnant and it's all on her and the man can just run away.

No, it’s not a good situation. There are child support laws on the books but I suspect they work most effectively when applied to men who would support the child anyhow.

However, trying to force the responsibilities that come with marriage onto an unmarried father is a mess, particularly within the context of the rights and responsibilities issues raised in Cassandra’s post. To me, this is the flip side of asking whether an unmarried man should have any say in whether a woman aborts his child.

If you're going to give an unmarried father responsibility, what kind of rights are you going to give him? Can he ask for custody just as a married father could in a divorce action? Will you enact the types of "can't move out of state" rulings that sometimes happen in divorce cases? What if the mother wants to give the baby up for adoption? Does the father have the right to prevent her from doing so even if he himself does not want custody? What if the mother doesn't tell the father about the baby and puts him/her up for adoption? If the father finds out about it later, does he have the right to get the adoption reversed? What if he doesn't find out for a year or two or three? Does he have the right to take the baby back from his/her adoptive parents? What say does the father have about health care decisions, school decisions, religious upbringing? What if the mother marries a wonderful man who wants to adopt the child? Can the biological father prevent that?

Personally, I think a man who does not support - financially and emotionally - a child of his whether born in wedlock or not is pretty scummy. But if we're going to insist unwed fathers live up to their responsibilities, we need to figure out what kinds of rights we're going to give them. I would prefer to see unwed mothers have all the rights with regard to their pregnancy; they should be able to choose whether to abort the pregnancy, bear the child and give him/her up for adoption, or bear the child and raise him/her as she sees fit. If she is to have unfettered rights, however, she must also bear all the responsibilities.

This is certainly not fair in the sense that no woman gets herself into this position by herself. But I think it is fairer than giving men some of the responsibility with none of the rights.

Posted by: Elise at August 14, 2008 06:41 PM

Getting back on topic.

If the only reproductive rights men have is to keep their pants on, then equality demands that the only reproductive rights women have is to keep their pants on.

If you want to claim that because the child (which is equal parts both of you) gestates in the female then she ought to have more rights, then make that argument. Just don't call it "Equality".

As for: "...but in reality, that's basically how it is now, single moms are just stuck on their own, often poor, and that's not good for them, the kids, or society in general. That's how it's been for ages, a woman gets pregnant and it's all on her and the man can just run away." That is patently false. Cass has already provided a clear example that it is false. If a man who had only agreed to become a sperm donor because the mother requested him to walk away and bear no responsibility couldn't "just run away" and had to provide child support what makes you think any other man can?

Posted by: Yu-Ain Gonnano at August 14, 2008 07:00 PM

Will you enact the types of "can't move out of state" rulings that sometimes happen in divorce cases?

You mean the "The father can't move out of state" rulings. The mother can move to the other side of the county, taking the kids with her (effectively denying visitation), and the father can't do jack squat about it unless he wants (or is able) to move as well to follow her. At which point she may have him arrested for stalking (I hope that is hyperbole though I fear it isn't).

Posted by: Yu-Ain Gonnano at August 14, 2008 07:07 PM

I meant "country", not "county".

Posted by: Yu-Ain Gonnano at August 14, 2008 07:08 PM

I'd like to look at your examples of early established religions more closely, Y-a-G. What are you thinking of here?

So with that, the 10A lays down and either/or scenario, but does not clarify which powers are delegated to the state and which ones are not delegated at all. I haven't seen anything that forbids the power to define marriage to the state.

Have you seen anything that would permit it? The government should not have powers that are not formally granted to it by constitutional authority, either Federal or State.

The regulation normally offered as an example is the right to regulate for consanguinity. However, that basic exception to marriage rights was well-established as a part of the institution at the time of the Founding. Being delegated the authority to be the one to apply an existing limit is not the same as being delegated the authority to redefine the institution.

Saying that a man can't marry his cousin doesn't change the institution, it limits access to it. What is happening with today's gay marriage debate is an argument for completely changing the nature of the institution, in order to provide access to it. The analogy (normally) made to defend the change is exactly incorrect.

Furthermore, if the government can completely redefine institutions that it has been delegated power to regulate, then it has been granted far more power than we believe. If it can redefine "marriage," it can redefine "property."

We often and rightly criticize Congress, but only the courts seem inclined to try to grab power on that scale -- Kelo v. New London is of a similar bent to the attempt to force gay marriage through judicial fiat; or to resolve abortion only through the courts, and forbid the legislature to enter the fray, as the courts have essentially done.

Posted by: Grim at August 14, 2008 07:12 PM

You mean the "The father can't move out of state" rulings. The mother can move to the other side of the county, taking the kids with her (effectively denying visitation), and the father can't do jack squat about it unless he wants (or is able) to move as well to follow her.

My understanding is that either parent can be forbidden to move depending on who has custody, how visitation is set up, and so on. In cases where father and mother have joint custody I don't think either parent can move.

Regardless of how this works in real life, though, my point is that parental rights and responsibilities are a mess even in divorce cases where there is an established legal procedure to go through to at least try to get things straightened out. How much of that do we want to try to impose on the issue of parental rights when the parents were never married?

Posted by: Elise at August 15, 2008 10:05 AM

The government should not have powers that are not formally granted to it by constitutional authority

I agree, it should. That, however, is not necessarily the same as does. The 10A was added to ensure that was is and what ought were the same thing. However, if the state constitutions do not have a similar provision then while we think that it should be that way, it may not actually be that way in law.

As for: "Have you seen anything that would permit it?" No, but I haven't seen anything that would allow state (vice Federal) religion either. And yet, they did it anyway(when I get more time I'll go find examples). This suggests the area is not as clear cut.

Elise, While the provision may be allowed against both partners in theory, in practice, it's rarely enforced evenly.

Posted by: Yu-Ain Gonnano at August 15, 2008 10:30 AM

Grim, while wikipedia caveats do apply:

At the time of the passage of the Bill of Rights, many states acted in ways that would now be held unconstitutional. All of the early official state churches were disestablished by 1833 (Massachusetts), including the Congregationalist establishment in Connecticut. It is commonly accepted that, under the doctrine of Incorporation - which uses the Due Process clause of the Fourteenth Amendment to hold the Bill of Rights applicable to the states - these state churches could not be reestablished today.

So, there were state (vice Federal) churches for at least 40 years after the ratification of the Bill of Rights.

Posted by: Yu-Ain Gonnano at August 15, 2008 12:45 PM

That last sentence was not supposed to be blockquoted. PIMF

Posted by: Yu-Ain Gonnano at August 15, 2008 12:46 PM

What I really want to know, I think, is whether the Founders felt like this was a Constitutional issue or a normal legislative issue.

So: in places where a state church is founded, did they feel like that had to be written into the state constitution, or did they think it could be done by a regular law?

The reason I think the question may be important is that it may resolve the issue of 'going back to the people for new authority.' I can accept that the states had far greater powers before the Civil War -- that's obviously true -- and were not subject to the incorporation of the Bill of Rights (also obviously true).

In terms of understanding where the line between "reserved to the states" or "reserved to the people" might be, though, I think the constitutions of the states may be the place to look. It looks to me, just having Googled a bit, that Mass. at least decided it needed to solve the question in its Constitutional Convention, not through regular legislative acts. That's the difference between this being a power that is delegated to the states through a constitution, v. something that 'the people' exercise through the legislature.

It's an important distinction, to me, in that it's the difference between an American style constitution and a British style one. The UK understands itself to have an unwritten constitution; but every power that 'the people' have can be exercised through the legislature. Thus, nothing but popular opinion -- or even just the legislators' reading of popular opinion -- actually restrains government authority.

The American system is meant to restrain government much more tightly. The government should have to demonstrate that it was delegated the authority to resolve a question using the legislative process. The place to look for such delegations is in the constitution -- these days, normally in the Federal constitution, but pre-Civil War certainly also in the state constitutions.

Posted by: Grim at August 15, 2008 01:00 PM

My Google-fu appears weak.

Most everything that I've found lacks specificity. The closest I've found in Connecticut's Constitution, which neither gave nor prohibited the power to establish religion. However, Connecticut disestablished it's official religion at about the same time as the new state constitution's adoption. None of the resources I've found mention if it was dropped due to the new constitution or in spite of it.

I've seen plenty of mentions that other states (besides Conn and Mass) and localities had official religions, yet none saying which states and localities, much less dates of establisment and disestablishment.

Posted by: Yu-Ain Gonnano at August 15, 2008 04:08 PM

I'd say that, for both men and women, a lot of reproductive "rights" end the moment either of them takes his or her pants off. The child that results from sex brings its own new rights into the situation. (For me, it brings those rights at conception; for many, of course, the rights don't arise until some future point, maybe when the fetus approaches viability, maybe when it's born -- maybe not even until it's born intentionally, in the case of proponents of laws that fail to protect live births that result accidentally from botched late-term abortions.)

The rights of the independent new human being even trump, for me, the rights of the unfortunate mother on whom pregnancy is forced by rape.

It just doesn't seem to work very well to try to separate sexual activity from the possible or even likely result of conception. (No birth control is perfect.) In this I know I sound like the Pope. But he's onto something, isn't he? It's dangerous to act as though we were free to have casual sexual relationships. It gets us into terrible moral quandaries, like unintended children, and children whose parents are unwilling to stay committed to raising them together all the way to maturity. It brings us men who have sex without intending to raise children. It brings us women who have sex without first ensuring that they have an appropriately safe home in which to raise children.

Posted by: Texan99 at August 17, 2008 10:52 AM

Our current abortion and parental support laws derive more from our practical desire to solve certain ills than from any sold legal or moral theory. Men are more likely to abandon, therefore we want to make them responsible; women are more likely to be abandoned (and will likely have more responsibilities anyway), therefore we want to help them. This emotional drumbeat plays underneath the argument whenever it happens. It is the foundation of the contradictions in law noted so clearly here. Fairness, equality, principle - these go out the window. It's rather like affirmative action, really.

The odder emotional rather than logical argument is the frequent equating of not allowing women to have abortions to someone raping them. The "invading my body" or "telling me what to do with my body" argument is visceral with some women. They shudder at men even bringing it up, as if a rape were being advocated. This shudder - I am sorry to say it but it is true - destroys the ability of those particular women to discuss the issue reasonably. I have watched this live and in color enough times to be convinced of it.

Thank you for attempting to bring this part of the discussion to the table in a civil manner.

Posted by: Assistant Village Idiot at August 17, 2008 10:25 PM

I've often thought that the abortion debate closely resembles the race debate.

It seems to be one of those subjects we are unable to discuss dispassionately, and yet we need to discuss it. Having the courts remove the issue from public debate isn't the right answer in the long term. It's convenient, but it short circuits a process I think we need to go through.

Posted by: Cass at August 18, 2008 07:00 AM

Having the courts remove the issue from public debate isn't the right answer in the long term.

But it is the most politically expedient answer if you are part of certain ideological groups that seek to undermine the United States.

Posted by: Ymarsakar at August 18, 2008 07:04 PM

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